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Congress fails to claw back the right to wage war

WERE THE founding fathers to return, suggested Michael Beschloss, a historian, in “Presidents of War”, they would be “thunderstruck” to discover how the power to kick off major wars could now rest on the whim of a president. Presidents have “regularly told Congress to go to hell” on such matters, as Harry Truman admiringly noted of James Polk, the 11th president. Donald Trump is keeping up that tradition. On April 16th he wielded his veto for only the second time in his presidency to strike down a bill that might have forced him to end America’s support for the Saudi-led war against the Houthi militia in Yemen. The fighting has caused what the UN calls the world’s worst humanitarian crisis.

That the bill got so far, so quickly, is notable in itself. It sped through Congress–passing the Republican-controlled Senate on March 13th and the House on April 4th—because of expedited procedures, never before used, granted by the War Powers Resolution. This act was passed in 1973 in response to Richard Nixon’s secretive expansion of the Vietnam war. In theory, the resolution tied presidents’ hands by requiring them first to consult Congress before sending forces abroad, and then to ask Congress for a declaration of war or a specific mandate to keep them there beyond 60 days. In practice, most presidents have either stretched or ignored the law.

Much of the recent stretching has occurred as a result of the sprawling “war on terror”. Three days after the terrorist attacks of September 11th 2001, Congress passed an Authorisation for Use of Military Force (AUMF) permitting George Bush to go after those who “planned, authorised, committed or aided” the atrocity.

That was clearly a reference to al-Qaeda, then holed up in Afghanistan. But by 2016 the AUMF had been used by Mr Bush and his successor, Barack Obama, 37 times to justify action in 14 countries, “even against groups that did not exist on 9/11”, points out Christopher Anders of the American Civil Liberties Union. Mr Obama, for instance, deployed the AUMF for his war on Islamic State in Iraq and Syria even though the group angrily split from al-Qaeda long ago.

The War Powers Resolution was gutted long before the elastic AUMF created loopholes wide enough to fly F-16s through. Most presidents after Nixon have simply ignored it, declaring its demands to be an unconstitutional infringement on their executive powers. When the Kosovo war crossed the 60-day mark in 1999, Bill Clinton insisted that Congress had expressed approval by ponying up money for it—never mind that the War Powers Resolution explicitly says that does not count, and that lawmakers are loth to cut off funds for troops in the line of fire.

The most inventive approach has been to pretend that, contrary to appearances, there is in fact no war. In 2011 Mr Obama said he was free to bomb Libya because the action was led by NATO, did not involve “sustained fighting or active exchanges of fire” and was unlikely to escalate—and so did not meet the definition of “hostilities” envisaged by the War Powers Resolution. Mr Trump has put forward much the same argument for his own entanglement in Yemen (which started under Mr Obama). Indeed, had he signed the Yemen bill rather than vetoed it, it is likely that his administration would have claimed its provisions did not apply to Yemen anyway.

Lawmakers are right to roll their eyes at such make-believe. After all, American commanders sit in an operations room in Riyadh next to their Saudi counterparts. American engineers service the Saudi warplanes. Until recently American planes refuelled the Saudi bombers mid-flight too. War at arm’s length is still war.

Meanwhile, the fighting has left 10m Yemenis “one step away from famine”, warns the UN’s World Food Programme. Congress, though exasperated, does not have the numbers to override Mr Trump’s veto. But it is likely to continue the fight in other ways, such as by tacking riders onto the annual National Defence Authorisation Act, which is much trickier for the president to quash. At least some of the founding fathers would have approved.